In commercial leases, it is standard for landlords to reserve a right of entry onto the property to examine its state and repair. Normally allied to this right of entry is the right for the landlord to make good any defects or wants of repair that arise as a result of a breach by the tenant of its repairing covenant, which the tenant fails to remedy after it is given notice of the breach. Clearly such clauses are required to enable the landlord to protect its investment.
However, it should be noted that an ancillary effect of such a clause is to impose a duty of care on the landlord under the Defective Premises Act 1972 (the "DPA") in respect of any defect for which the landlord has a liability or ability to repair. This duty of care is owed to anyone (including the tenant) who might be affected by defects in the state of the property, and requires that the landlord takes such care as in reasonable in the circumstances to ensure that an affected party (or its property) is kept reasonably safe from personal injury or damage. One important caveat to this is that the landlord is not liable to the tenant where the defect has arisen as a result of the tenant's breach of its repairing covenant.
The DPA makes it clear that the duty of care arises if the landlord knows, or ought to have known, about the defect. On that basis, actual knowledge or notice of the defect is not a pre-requisite to liability. In order to mitigate the risks under the DPA, landlords should:
- Ensure that the lease contains an express obligation on the tenant to notify the landlord promptly upon any defect arising;
- Maintain an active inspection programme of all properties within the landlord's portfolio, particularly those to which the public are given access; and
- Remediate, or procure the remediation of, any defect as soon as reasonably practicable upon becoming aware of it.